Goldmann, Leonard and Fritz. The opinion of the court was delivered by Leonard, J.A.D.
The Brick Township Municipal Authority (MUA), as intervenor, appeals from a decision of the Board of Public Utility Commissioners (PUC) in favor of petitioner South Lakewood Water Company (Lakewood Water) approving consents granted by the New Jersey Department of Transportation and the Ocean County Board of Freeholders for the laying of pipes and mains beneath State Highway 70 and certain county roads located in Brick Township and the constructing and maintaining of hydrants on and along these roads in order to service properties bounding on Route 70 from the Lakewood Township line to the Laurelton Circle.
The MUA contends that the PUC does not have the power to allow a water company to extend service to a municipality without the consent of that municipality.
Lakewood Water was incorporated in 1962 to service part of Lakewood Township and this franchise has since been expanded within that municipality. On December 22, 1967 Lakewood Water applied by letter to the Mayor and Council of Brick Township for consent to serve a portion of that township. On July 8, 1968 it again submitted a request for approval of an extension of its water lines into the area. Though members of the municipal governing body met with the company's representatives, no action was taken. Thereupon, Lakewood Water obtained the described county and state consents to lay its pipes. On April 3, 1969 Lakewood Water filed a petition with the PUC for approval of these consents and for authority to proceed. On April 24, 1969, before any PUC hearings were held, the MUA was formed and it was stipulated that it could participate in the hearings as an intervenor in place of the township.
In June 1970, following extended hearings, the PUC approved the consents granted to use the county roads and State Highway Route 70. In effect, this permitted Lakewood Water to extend service to Brick Township even though the latter had never consented.
The need for municipal consent to lay pipes in other than municipal streets was obviated by N.J.S.A. 48:19-17 which states:
Each water company may lay its pipes beneath such public roads, streets and places as it may deem necessary for its corporate purposes, free from all charge to be made by any person or body politic whatsoever for such privilege, and may also construct and maintain hydrants on and along such roads, streets and places, provided that the pipes shall be laid at least 3 feet below the surface and shall not in anywise unnecessarily obstruct or interfere with the public travel or damage public or private property.
The consent of the public body charged with the repair and maintenance of such public roads, streets and places shall first be obtained.
If such public body shall refuse or fail to give its consent, the water company may appeal to the Board of Public Utility Commissioners of the State of New Jersey. A hearing thereon shall be had on notice to all parties in interest, who shall be afforded an opportunity to be heard. If, after such hearing the Board of Public Utility Commissioners shall determine that the installation of such pipes or hydrants is reasonably necessary for the service, convenience or welfare of the public, the water company shall be authorized to proceed in accordance with such determination.
Since in the instant case no municipal roads were to be used, Lakewood Water did not need the township's consent to lay pipes.
N.J.S.A. 48:2-14 reads in pertinent part:
No privilege or franchise granted after May first, one thousand nine hundred and eleven, to any public utility by a political subdivision of this state shall be valid until approved by the board. Such approval shall be given when, after hearing, the board determines that the privilege or franchise is necessary and ...